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One of the most difficult practical issues employers and their counsel face is determining when an employee has requested an accommodation under the Americans with Disabilities Act so as to trigger the "interactive process." This issue was recently addressed by the U.S. District Court for the Eastern District of Pennsylvania in Boice v. SEPTA.

Bruce Boice was a maintenance manager for SEPTA from 1989 until his termination in August 2003. For approximately the last year of his employment, he worked at SEPTA’s Victory bus garage.

Diabetes as Disability

Boice alleged that he has diabetes and a shrapnel wound. SEPTA conceded that his diabetes substantially limited a major life activity, inasmuch as he was impotent due to his diabetes medication. Boice testified during his deposition that his "impotence is the only disability that impairs a major life activity."

Shortly after Boice began working at the Victory garage in 2002, his supervisor informed all of the maintenance managers that they could no longer park in an alley between buildings at the garage because it interfered with the mechanics’ access to tires stored in the alley.

Boice’s deposition testimony was inconsistent as to whether he requested an accommodation related to this change in parking. Initially, Boice testified that he told his supervisor that he needed a handicap spot (as his car had handicap tags) and was told that "there is none." Later, however, Boice testified that "I didn’t need an accommodation. . . . I just asked them where the handicapped spot was and why was he making me move and no one else."

Shortly after the parking was changed, Boice was informed that he was being rescheduled from the day shift to the relief shift. When advised of this change, Boice complained to his supervisor, explaining that his prior manager had allowed him to work the day shift because regular daytime work hours allowed him to maintain a proper and steady course of medication to treat his diabetes. Boice alleged that his supervisor replied: "You’ll do what I . . . tell you."

Boice did not, however, formally request an accommodation through SEPTA’s internal processes, nor did he ever submit medical documentation of his need for a daytime shift (or handicap parking).

Termination

Boice was terminated in late 2003 for safety issues unrelated to his alleged disability or request for an accommodation. He brought suit against SEPTA claiming race and disability discrimination. Boice’s race discrimination claim was based upon alleged "reverse discrimination," as one of his supervisors was black. Following discovery, SEPTA moved for summary judgment on all of Boice’s claims.

The court granted SEPTA’s motion with respect to Boice’s race discrimination claim. The court found that in addition to Boice’s inability to present admissible evidence of similarly situated individuals who had engaged in the same safety violations, the fact that the main participants in the decision to terminate Boice were Caucasian "seriously hampers" his racial discrimination claim. Moreover, the fact that he was replaced by a Caucasian manager "likewise undercuts a claim of racial discrimination." Finally, the court found that evidence that the same black manager whom he accused of discrimination had expressly requested Boice to work with him at Victory, evidenced a "lack of racial animus," even though the 3rd U.S. Circuit Court of Appeals has held that such evidence has no presumptive value.

With respect to Boice’s claim for failure to accommodate, the court found that Boice’s "overall deposition testimony is unclear" as to whether he had requested an accommodation sufficient to trigger SEPTA’s duty to engage in the interactive process. Moreover, the court found Boice’s failure to follow SEPTA’s formal procedures for requesting an accommodation was not fatal to his claim. Rather, the court found that "Mr. Boice’s requests, combined with [his supervisor's] knowledge of his diabetes triggered the employer’s duty to engage in the interactive process."

Adverse Action

SEPTA argued, however, that Boice suffered no adverse employment action as the result of his disability and its alleged failure to accommodate. Boice conceded that SEPTA’s alleged failure to accommodate played no role in his termination. The court found, however, that in "failure to accommodate cases, an adverse employment decision includes the employer’s failure to accommodate, reasonably, the employee’s disability."

In essence, the alleged failure to accommodate could be, itself, an adverse employment action. The court concluded that Boice had sufficiently alleged that he suffered an adverse employment action in the "conditions and privileges of employment."

Finally, SEPTA argued that Boice was not entitled to reinstatement or lost wages as damages where the Veterans Administration had designated him 100 percent disabled as of the date of his last day of work. The court agreed, finding that, although Boice could have (arguably) explained this discrepancy as a matter of law, he had failed to do so. The court noted that in order to receive disability benefits, Boyce had stated unequivocally that he could not work at all.

The case represents the low threshold used by the courts in determining whether an individual has requested an accommodation under the ADA. Similarly, counsel for employers should advise their clients to err on the side of considering requests for accommodations under the ADA’s interactive process, rather than avoiding the process.

SID STEINBERG is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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